Hill v Commonwealth of Australia Represented by the Department of Human Services

[2016] FWC 2788

[2016] FWC 2788

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jane Hill

v

Commonwealth of Australia represented by the Department of Human

Services

(U2015/17235)

DEPUTY PRESIDENT KOVACIC	MELBOURNE, 4 MAY 2016
Application for relief from unfair dismissal.

[1]        Mrs Jane Louise Hill (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 30 December 2015 under s.394 of the Fair

Work Act 2009 (the Act) alleging that termination of her employment by the Commonwealth

of Australia as represented by the Department of Human Services (the Respondent) was

unfair.

[2]        The matter was listed for conciliation on 18 February 2016 however it could not take

place as Mrs Hill was unavailable. Subsequently Mrs Hill emailed the Commission explaining

that due to arrangements for child care falling through she could not take the call for the

conciliation. The matter was relisted for conciliation on 8 March 2016 but again Mrs Hill did

not make herself available. Consequently, directions were issued and the matter was listed for

a hearing.

[3]        Mrs Hill was directed to file an outline of submissions, any witness statements and

other documentary material she wished to rely on by noon, on 29 March 2016.

[4]        Mrs Hill did not comply with this direction and the matter was listed for a non

compliance hearing by telephone before Deputy President Kovacic on 1 April 2016.

[5]        At 6.57 pm on Thursday, 31 March 2016 Mrs Hill emailed the Commission advising

that she had been away with no access to the phone or internet and had just now received all

her emails. She went on to say:

“I am not sure what I am required to do but the number I will be best contactable on is

….. I will be out at a gala day all day but will be fine to take the call. I am wondering if

someone could contact me prior to the phone conversation as I am not sure what it will

entail and what I need to do or say.”

[2016] FWC 2788

[6]        Mrs Hill did not make herself available for the non compliance hearing. Ms Jessica

Kliger, on behalf of the Respondent, made an oral application, pursuant to s.399A of the Act,

that the matter be dismissed as Mrs Hill had failed to comply with the direction of the Fair

Work Commission. Deputy President Kovacic waived compliance with the Fair Work

Commission Rules 2013 and accepted the Respondent’s oral application.

[7]        Section 399A of the Act provides as follows:

“399A	Dismissing applications
(1)	The FWC may, subject to subsection (2), dismiss an application for an order
under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held

by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the

application; or

(c) failed to discontinue the application after a settlement agreement has

been concluded.

....

(2)	The FWC may exercise its power under subsection (1) on application by the
employer.
(3)	This section does not limit when the FWC may dismiss an application.”

[8]        Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[9]        I will determine the application on the papers.

[10]      As Mrs Hill has provided no explanation for her failure to comply with directions, I

find that her failure was unreasonable.

[11]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Mrs Hill has failed to respond to the attempts by the Commission to contact

her. She has shown no willingness to prosecute her case. In those circumstances, I will

exercise my discretion and dismiss Mrs Hill’s application. An order giving effect to this

decision will be issued today.

<Price code A, PR579988>

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